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In the first of what promises will be many hearings on copyright reform, a House Judiciary subcommittee on May 16 took aim at a threshold issue that doomed recent copyright legislation: How can diverse stakeholders with starkly different viewpoints work together in a productive manner to address polarizing copyright issues?

As an example of how to reach consensus on challenging copyright issues, the Subcommittee on Courts, Intellectual Property and the Internet heard from five witnesses from the Copyright Principles Project, a group of participants with varying backgrounds that in 2010 released a report identifying 25 “meaningful reforms” that it claimed were needed to U.S. copyright law (187 PTD, 9/29/10).

The proposed reforms were not addressed in any detail during the hearing, and indeed one witness noted that though the CPP “was a breath of fresh air” in that it represented “real dialogue among representatives of significantly differing views,” a number of issues still proved too contentious for consensus.

Goodlatte, Pallante Call for Review of Copyright Laws

By focusing less on specific issues and more on process, the hearing should be seen as merely “[t]he initial step [towards] a comprehensive review of this nation's copyright laws,” Rep. Howard Coble (R-N.C.), chairman of the subcommittee, said.

Rep. Bob Goodlatte (R-Va.), chairman of the full Judiciary Committee, was not eager to begin talking about controversial subjects. Goodlatte on April 24 announced during a World Intellectual Property Day event that his committee would take an in-depth look at U.S. copyright laws. Goodlatte said during his opening statement that since that announcement he has been contacted by numerous parties expressing their specific areas of concern.

“We should not be in a rush to focus on specific issues without first recognizing the fundamentals of copyright and the social and economic benefits that copyright brings to our economy,” Goodlatte said. “It is my intention to conduct this broad overview by hearing from everyone interested in copyright law as we begin by holding hearings on important fundamentals before we begin to look at more specific issues.”

Another push for an extensive review of copyright laws came during Register of Copyrights Maria Pallante's March testimony before the IP subcommittee. “Our law is showing its age” and it is time to begin thinking about making critical updates and revisions to the United States copyright system, Pallante told lawmakers March 20 (56 PTD, 3/22/13).

SOPA Failure Underscores Need for CPP-Style Approach

The vitriol surrounding the debate over the House's Stop Online Piracy Act served as a backdrop for the May 16 discussion. During a heated hearing in late 2011, proponents of that bill-designed to reached offshore “rogue websites” that host infringing content--were accused of trying to “kill the internet” while opponents of the legislation were accused of protecting infringers (221 PTD, 11/16/11).

Both SOPA, and its Senate counterpart, the Protect IP Act, ultimately stalled after opposition to the bill--fueled by the tech industry--spilled into the public discourse, resulting in over 10 million citizens signing petitions against the legislation (13 PTD, 1/23/12).

Pamela Samuelson, director of the University of California Berkeley Center for Technology and Law, testified May 16 about the motivation behind the project. In her written statement she said that she convened the CPP in 2007 “with the support and encouragement of then-Register Marybeth Peters who thought that it would be beneficial for a group of copyright professionals to start conversations about copyright reform.”

The group was comprised of 20 academics, private practitioners, and corporate lawyers. “It was an effort to reach out to people of different points of view,” Samuelson told lawmakers.

After three years of discussion, the group released a report in 2010, The Copyright Principles Project: Directions for Reform, that identified 25 topics that, according to the report, “elicited enough support within the CPP group that it was deemed constructive to style them in this Report as recommendations.”

A CPP participant, and Samuelson's fellow panelist on May 16, objected to that characterization. Jon Baumgarten, who served as the Copyright Office's general counsel from 1976-1979, and then worked as an attorney with Proskauer Rose in Washington, D.C., before retiring in 2011, questioned the wisdom of including the recommendations in the report. In his written testimony, Baumgarten said:

Given the composition of the membership and strength of dissenting views, the “enough support” rationale is, at least in retrospect (and was to some at the time) an unfortunate and inadvertently misleading one.

But even if the recommendations themselves were premature, Baumgarten said there was still value in the CPP process. “When viewed from the perspective of today's increasingly polarized, largely distrustful, and deeply antagonistic copyright debates, the process and report of the CPP was a breath of fresh air,” he said.

Another witness, Jule Sigall, former associate register at the Copyright Office and current associate general counsel for copyright at Microsoft Corp., said that he has worked on copyright issues for two decades and has noticed some troubling trends during that time.

“Over the past twenty years, I've watched the public perception of copyright deteriorate, from a positive--if little-known--means of enriching public knowledge, to the increasingly negative, and even hostile, manner in which it is sometimes viewed today,” Sigall said. “In this environment, progress can prove elusive even when there is general support for reform.”

Moving Beyond the Polarizing Rhetoric

Like Baumgarten, a number of lawmakers rejected the CPP's specific proposals, but nonetheless saw the value in the CPP's approach. Goodlatte, for instance, wanted to know what advice the witnesses had for how stakeholders can work together.

“In our discussions we avoided the good versus evil stories,” Sigall said. He said that, rather than framing the other side's argument in a hostile way, “We tried to focus on the interests of where the other side was coming from so that we could modify our remarks to make sure that we could communicate our own interests” in a productive manner.

“Stop being so polarized and think about the needs of society and our economy and how copyright enriches our lives,” Laura N. Gasaway, a law professor and law library director at the University of North Carolina, Chapel Hill, N.C., said.

Rep. George Holding (R-N.C.) asked why copyright has become such a polarizing topic.

With respect to the public's antipathy towards copyright, “The lack of clarity around reasonable and ordinary personal use has contributed to the declining public reputation of copyright,” Sigall said. However, he said that by and large the fact that people are passionate about copyright is not necessarily a bad thing. “It shows just how important creativity is, both to the persons that create the works and to the consumers,” he said.

Samuelson suggested that the polarization in part is a result of consumers and industry trying to adapt to “the huge disruption that the internet and advances in information technology has enabled.” Specifically, she said that rights holders' discovery that technological protection measures cannot adequately control their content, coupled with some consumers' willingness to engage in infringement through peer-to-peer file sharing “has created a toxic environment.”

Daniel Grevais, a professor at Vanderbilt University Law School in Nashville, Tenn., seemed to agree that new technologies, and in particular the tendency of rights holders to combat, rather than embrace, those technologies creates a great deal of friction. In his written testimony Grevais asked:

[S]hould one increase enforcement measures and then evolve business models, or should a recognition of consumer expectations in business models be sought (meeting consumer demand and shaping it gradually) and then use enforcement against recalcitrant users and professional infringers?

Grevais made it clear that he agreed with the latter proposition, and he urged rights holders “to maximize authorized access and use of copyrighted material.”

Baumgarten, however, disagreed. The problem with adapting to consumer expectations, Baumgarten said, is that technological advances have in some ways already changed “some aspects of the framework.”

“What had been a respectful discussion on how to fix copyright law has in some corners become a discussion of how to diminish the obstacles posed by copyright law” to a consumer's access to content, Baumgarten said.

Given the continuing disagreement even among CPP participants, Goodlatte urged stakeholders to be patient.

“This review of copyright law will not be a quick process simply because the issues are so numerous,” he said. “However, we must undertake this review to ensure that copyright law continues to incentivize creativity and innovation in the digital age.”

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